One Nation, Under Conservative Judges

June 30, 2002

By Richard S. Dunham What in the name of Zeus was that California appeals court thinking when it struck down the Pledge of Allegiance for allegedly violating the separation of church and state? The ruling has since been suspended pending further judicial review, but the repercussions could be far more dramatic than the appellate justices ever imagined.

The original 2-1 decision by a three-judge panel on June 26 wasn't just politically tone-deaf. In trying to strike a blow for civil liberties, the circuit court widely viewed as the most liberal in the U.S. (and one of the two justices striking down the Pledge was a Nixon appointee!) may have just handed the right wing its biggest public-relations victory since the flag-burning decision more than a decade ago. And it will likely give President Bush carte blanche to stack the federal bench with all the conservative judges he wants.

Bush was ready as soon as the decision was announced: This is why the federal courts need common-sense conservatives, the President declared in speaking out against the ruling. You could almost hear the theme that Republicans will now use from now until Liberal Doomsday: America needs reasoned jurists, not judges like those San Francisco radicals who would ban the Pledge of Allegiance and allow Rastafarians to smoke marijuana on federal property (another recent ruling from this crew).

SCURRYING FOR COVER. This is a no-brainer politically. Bush and his conservative allies have public opinion strongly behind them. According to a June 26-27 Fox News/Opinion Dynamics Poll, 83% of Americans disagree with the decision, while only 12% approve. And it's not just Republican conservatives who decry this latest round of judicial activism. Democrats give the ruling a big thumbs down, 77% to 16%, as do liberals, 72% to 20%.

No wonder Democratic leaders were scurrying for cover as House Republicans launched into impromptu renditions of God Bless America on the Capitol steps. Democratic National Committee Chairman Terry McAuliffe quickly labeled the ruling "unfortunate" and called on the court system to "overturn this wrong-headed decision." Senate Majority Leader Tom Daschle (D-S.D.) teamed up with Republican Leader Trent Lott of Mississippi to co-author a bipartisan resolution to defend the Pledge of Allegiance on appeal.

An interesting historical question here is whether Congress was responding to the Red-baiting hysteria of the McCarthy period when it added the words "under God" to the Pledge of Allegiance in 1954. Indeed, the record of the floor debate at the time shows that the chief sponsors wanted to highlight the differences between "Godless Communists" and "God-fearing Americans." It clearly was political posturing, rooted in the era. But all that is history now.

AN HISPANIC THOMAS? Today's debate is post-September 11, when the nation feels threatened and with the federal bench facing an unprecedented vacancy rate that Supreme Court Chief Justice William Rehnquist calls a national "emergency." The Democratic-controlled Senate is holding up Bush nominees for close review, and Republicans have decried Daschle & Co. as obstructionists bent on slowing down the confirmation process -- or even trying to derail it completely. Now they can turn up the heat.

The big fight will be over the next vacancy on the Supreme Court, which could happen in a year or two. Liberals fear that Bush's strategy is to nominate a conservative Hispanic lawyer, similar in philosophy to Justice Clarence Thomas.

After the Pledge of Allegiance episode, imagine liberal Democratis in the Senate trying to block a conservative nominee from California or Texas. You can almost hear the retort already: Does America want a common-sense conservative or a Left Coast radical? Liberals have good reason to worry that the definition of "mainstream" may now become someone who loudly and publicly supports the Pledge of Allegiance, not someone who struggles with the legal nuances of abortion or civil rights, or privacy protections.

As they say in law school, bad facts make bad law. Now there's a corollary: Bad decisions make bad politics. That's just fine with Bush, however. He and fellow Republicans may have just gotten one issue, indivisible, that they never could have dreamed of. Dunham is a White House correspondent for BusinessWeek's Washington bureau. Follow his views every Monday in Washington Watch, only on BusinessWeek Online